Calcutta High Court (Appellete Side)
(Sri Dilip Kumar Das vs The State Of West Bengal & Ors.) on 16 May, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
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2016 W. P. 20905 (W) OF 2015
(Sri Dilip Kumar Das -vs- The State of West Bengal & Ors.)
49
no.13
Mr. Amalesh Ray
Ms. Mousumi Bhowal
Mr. Arghya Sen
Mr. Debarshi Dhar - for the Petitioner
Ms. Chaitali Bhattacharyya
Ms. Sukla Das Chandra - for the State
Ms. Tapati Samanta - for the Respondent no. 3
The petitioner has sought for grant of benefit of higher pay scale. The writ petition was affirmed on December 23, 2014 and was filed on August 20, 2015.
Noticing such fact on the previous date of hearing, I had expressed my mind to the learned advocate for the petitioner that the petitioner is guilty of forum shopping by having a writ petition affirmed on December 23, 2014 and not filing the same till August 20, 2015. There was change of determination in the interregnum. In such circumstances, I had expressed a view that I would dismiss the writ petition.
The learned advocate for the petitioner has submitted that, the petitioner is not guilty of forum shopping. If at all, it was the laches on the part of the learned advocate for the petitioner in not filing the writ petition within the close proximate date of affirmation. He has referred to a list of dates. Referring to such list of dates, he has submitted that, similar writ petitions were heard by the learned Judge. Hearing of the writ petitions was not concluded before the learned Judge and therefore, the learned advocate for the petitioner had directed his office not to file the writ petition in spite of 2 affirmation thereof. He has referred to Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 and has prayed for leave to withdraw the writ petition with liberty to file afresh.
The State authorities and the respondent no. 3 are represented. It appears from the records that the writ petition was affirmed on December 23, 2014 and that the same was filed on August 20, 2015.
The list of dates relied on at the behest of the petitioner demonstrate that on the date of affirmation of the writ petition the determination to hear the writ petition was with a learned Judge. The determination had changed subsequently. With the change of determination the writ petition was filed on August 20, 2015.
I am not impressed by the submissions on behalf of the petitioner that the learned advocate had directed his office not to file the writ petition. The writ petition was affirmed on December 23, 2014. Apart from the intention of forum shopping there was no other ground for a petitioner to have a writ petition affirmed and not filing the same in close proximity to the date of affirmation of the writ petition.
The conduct of the petitioner discloses a serious effort on the part of the petitioner to choose the learned Judge to hear the writ petition. This conduct cannot be termed to be a formal defect or a sufficient ground within the meaning of Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 to permit withdrawal of such writ petition with liberty to file afresh.
In such circumstances, the prayer for leave to withdraw the writ petition with liberty to file afresh is not allowed.
The writ petition is dismissed without any order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.
(Debangsu Basak, J.) 3